Ordinance No. 7,071940825 -1
ORDINANCE NO. 7071
AN ORDINANCE APPROVING AND AUTHORIZING THE EXECUTION OF
AN AMENDMENT TO THE CONTRACT FOR THE DEVELOPMENT OF THE
BAYLAND PARK HOTEL AND MARINA BETWEEN MILLER BROWN
DEVELOPMENT COMPANY, INC., AND THE CITY OF BAYTOWN; AND
PROVIDING FOR THE EFFECTIVE DATE THEREOF.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS:
Section 1: That the City Council of the City of Baytown,
Texas, hereby approves and authorizes the execution of an amendment
to the Contract for the Development of the Bayland Park Hotel and
marina between Miller Brown Development Company, Inc., and the City
of Baytown. A copy of said amendment is attached hereto, marked
Exhibit "A," and made a part hereof for all intents and purposes.
Section 2: This ordinance shall take effect immediately from
and after its passage by the City Council of the City of Baytown.
INTRODUCED, READ and PASSED by the affirmative vote of the
City Council of the City of Baytown this the 25th day of August,
1994.
ATTEST:
)- "00.
EILEEN P.-HALL; City Clerk
APPROVED AS TO FORM:
ACID RAMIREZ, ., City Attorney
kgavca=W8- 25- 94amdMARMiS rw
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L-J
PETE C. AL O, Mayor
MEMORANDUM OF AGREEMENT
Bayland Park Hotel and Marina
The Contract for the Development of the Bayland Park Hotel and Marina("Contract")that
was entered into on the 20th day of November, 1992, by and between the City of Baytown, Texas
("City")and Miller Brown Development Company, Inc. ("Developer") is hereby amended pursuant
to article X of the Contract as follows:
Developer hereby assigns all of its rights and obligations under the Contract as
follows:
A. Marina development and related engineering, architectural and construction work to
Busch Hutchison& Associates, Inc.; and
B. Hotel and related development to Privatization For America, Inc. ("P.F.A., Inc."). .
If any question arises as to the nature of the work to be performed or interpretation as to the
areas covered under subsection (A) or (B) herein, the city reserves the exclusive right to
resolve all questions and conflicts in those matters in the best interest of the city.
II. Developer,Busch Hutchison,P.F.A., Inc., and the City understand, agree, and acknowledge
by this Memorandum of Agreement that the Developer has forfeited all rights to any retainage
provided under the terms and conditions of the Contract, including, but not limited to, article
II sections C and D, to the City.
III. Busch Hutchison&Associates, Inc. hereby assumes all of Developer's rights and obligations
regarding the Marina development and related engineering, architectural and construction
work under the Contract;however,Busch Hutchison& Associates, Inc. expressly agrees and
understands that the City of Baytown may revoke at any time without penalty or further
obligation portions of the assigned duties and responsibilities herein granted, including, but
not limited to, the building/facility design and/or construction. Both Busch Hutchison &
Associates and the City of Baytown also understand and agree that before commencement
of the building/facility design and also before the construction of any building/facility, Busch
Hutchison & Associates, Inc. shall obtain express written approval of the building/facility
design and approval of the building/facility construction from the City in order for the City
to be obligated under the Contract and Assignment.
IV. P.F.A.,Inc. hereby assumes all of Developer's rights and obligations regarding the hotel and
related development work under the Contract. However,P.F.A., Inc. understands and agrees
that the designs and plans for the hotel as well as the financing for the same must be obtained
within 180 days from the date of the City's execution of this Memorandum of Agreement and
that if P.F.A., Inc. is unsuccessful in obtaining such designs, plans, and financing within the
180-day time period,the agreement along with all amendments thereto pertaining to the hotel
and related developments will automatically terminate.
V. All assignments contained herein shall not become effective until the city consents in writing
EXHIBIT A
to the same. The city's signature on this Memorandum of Agreement shall constitute its
consent not only to the assignment of all Developer's rights and obligations under the
Contract for the Marina development and related engineering, architectural, and construction
work, to Busch Hutchison& Associates, Inc. but also to the assignment of all Developer's
rights and obligations under the Contract for the hotel and related development work to
P.F.A., Inc.
VI. Developer warrants that payment of all subcontracts is current and therefore, Developer is
not due any further compensation for subcontractors or themselves.
VII. Developer certifies and City acknowledges that all plans, designs, studies and specifications
on the hotel and marina, either in process or completed, are the property of and are in
possession of the City. Developer also agrees to furnish to the City certified copies of any
and all agreements, subcontracts, or other obligations that the Developer has entered into in
relation to the underlying contract.
VIII. Developer,Busch Hutchison& Associates, Inc., P.F.A., Inc., and the City of Baytown shall
execute such additional agreements as may be reasonably necessary in the opinion of the City
to reflect the foregoing assignment, assumption and consent among the parties hereto.
IX. All parties hereto recognize the rights and responsibilities of the assignees and agree that the
City of Baytown maintains the ability to renegotiate terms, conditions, and compensation.
Where there is a conflict between this Memorandum of Agreement and any prior contract or
agreement, the provisions of this Memorandum of Agreement shall control.
The officers executing this Memorandum of Agreement on behalf of the parties hereby
confirm that such officers have full authority to execute this amendment and to bind the party the
represents.
IN WITNESS WHEREOF,the undersigned have executed this Memorandum of Agreement
on the day of , 1994.
MILLER BROWN DEVELOPMENT COMPANY, INC.
BY:
Timothy D. Miller
Chief Executive Officer
2
BUSCH HUTCHISON& ASSOCIATES, INC.
BY:
Jim Hutchison
President
PRIVATIZATION FOR AMERICA, INC.
BY:
John Stainback
Chief Executive Officer
THE CITY OF BAYTOWN
BY:
Pete C. Alfaro
Mayor
ATTEST:
Eileen P. Hall, City Clerk
APPROVED OVE AS TO FORM:
Ignacio Ramirez, Sr., City Attorney
3
ACKNOWLEDGMENT
STATE OF CALIFORNIA §
COUNTY OF §
This instrument was acknowledged on the day of
1994,by Timothy D.Miller, in his capacity as Chief Executive Officer of Miller Brown Development
Company, Inc. on behalf of the company.
Notary Public in and for
the State of California
ACKNOWLEDGMENT
STATE OF TEXAS §
COUNTY OF HARRIS §
This instrument was acknowledged on the day of
1994,by Jim Hutchison, in his capacity as President of Busch Hutchison& Associates, Inc. on behalf
of the company.
Notary Public in and for
the State of Texas
ACKNOWLEDGMENT
STATE OF TEXAS §
COUNTY OF HARRIS §
This instrument was acknowledged on the day of
1994, by John Stainback, in his capacity as Chief Executive Officer of P.F.A., Inc. on behalf of the
company.
4
I
Notary Public in and for
the State of Texas
ACKNOWLEDGMENT
STATE OF TEXAS §
COUNTY OF HARRIS §
This instrument was acknowledged on the day of
1994, by Pete C. Alfaro, in his capacity as Mayor of the City of Baytown on behalf of the
municipality.
Notary Public in and for
the State of Texas
5
I
MEMORANDUM OF AGREEMENT
Bayland Park Hotel and Marina
The Contract for the Development of the Bayland Park Hotel and Marina ("Contract") that
was entered into on the 20th day of November, 1992, by and between the City of Baytown, Texas
("City") and Miller Brown Development Company, Inc. ("Developer") is hereby amended pursuant
to article X of the Contract as follows:
I. Developer hereby assigns all of its rights and obligations under the Contract as
follows:
A. Marina development and related engineering, architectural and construction work to
Busch Hutchison & Associates, Inc.; and
B. Hotel and related development to Privatization For America, Inc. ("P.F.A., Inc.").
If any question arises as to the nature of the work to be performed or interpretation as to the
areas covered under subsection (A) or (B) herein, the city reserves the exclusive right to
resolve all questions and conflicts in those matters in the best interest of the city.
II. Developer, Busch Hutchison, P.F.A., Inc., and the City understand, agree, and acknowledge
by this Memorandum of Agreement that the Developer has forfeited all rights to any retainage
provided under the terms and conditions of the Contract, including, but not limited to, article
II sections C and D, to the City.
III. Busch Hutchison & Associates, Inc. hereby assumes all of Developer's rights and obligations
regarding the Marina development and related engineering, architectural and construction
work under the Contract; however, Busch Hutchison & Associates, Inc. expressly agrees and
understands that the City of Baytown may revoke at any time without penalty or further
obligation portions of the assigned duties and responsibilities herein granted, including, but
not limited to, the building/facility design and/or construction. Both Busch Hutchison &
Associates and the City of Baytown also understand and agree that before commencement
of the building/facility design and also before the construction of any building/facility, Busch
Hutchison & Associates, Inc. shall obtain express written approval of the building/facility
design and approval of the building/facility construction from the City in order for the City
to be obligated under the Contract and Assignment.
IV. P.F.A., Inc. hereby assumes all of Developer's rights and obligations regarding the hotel and
related development work under the Contract. However, P.F.A., Inc. understands and agrees
that the designs and plans for the hotel as well as the financing for the same must be obtained
within 180 days from the date of the City's execution of this Memorandum of Agreement and
that if P.F.A., Inc. is unsuccessful in obtaining such designs, plans, and financing within the
180-day time period, the agreement along with all amendments thereto pertaining to the hotel
and related developments will automatically terminate.
V All assignments contained herein shall not become effective until the city consents in writing
to the same. The city's signature on this Memorandum of Agreement shall constitute its
consent not only to the assignment of all Developer's rights and obligations under the
Contract for the Marina development and related engineering, architectural, and construction
work, to Busch Hutchison & Associates, Inc. but also to the assignment of all Developer's
rights and obligations under the Contract for the hotel and related development work to
P.F.A., Inc.
VI. Developer warrants that payment of all subcontracts is current and therefore, Developer is
not due any further compensation for subcontractors or themselves.
VII. Developer certifies and City acknowledges that all plans, designs, studies and specifications
on the hotel and marina, either in process or completed, are the property of and are in
possession of the City. Developer also agrees to furnish to the City certified copies of any
and all agreements, subcontracts, or other obligations that the Developer has entered into in
relation to the underlying contract.
VIII. Developer, Busch Hutchison & Associates, Inc., P.F.A., Inc., and the City of Baytown shall
execute such additional agreements as may be reasonably necessary in the opinion of the City
to reflect the foregoing assignment, assumption and consent among the parties hereto.
IX. All parties hereto recognize the rights and responsibilities of the assignees and agree that the
City of Baytown maintains the ability to renegotiate terms, conditions, and compensation.
Where there is a conflict between this Memorandum of Agreement and any prior contract or
agreement, the provisions of this Memorandum of Agreement shall control.
The officers executing this Memorandum of Agreement on behalf of the parties hereby
confirm that such officers have full authority to execute this amendment and to bind the party the
represents.
IN WITNESS WHEREOF, the undersigned have executed this Memorandum of Agreement
on theme `f day of A VG eSl , 1994.
MILLER BROWN DEVELOPMENT COMPANY, INC.
BY:
&;z6.L.
Timothy D. Miller
Chief Executive Officer
2
BUSCH HUTCHISON & ASSOCIATES, INC.
BY:
J Hutchison
resident
PRIVATIZATION FOR AMERICA, INC.
BY:
T11114/A71
John Stainback
Chief Executive Officer
THE CITY OF BAYTOWN
BY:
ATTEST:
Eileen P. Hall, City Clerk
APPROVED AS TO FORM:
acio Ramirez, Sr., �'ty Attorn
ey
Ramirez, Sr., `'ty Attorney
Pete C. Alfaro
Mayor
3
ACKNOWLEDGMENT
STATE OF CALIFORNIA
COUNTY OF §
This instrument was acknowledged on the day of
1994, by Timothy D. Miller, in his capacity as Chief Executive Officer of Miller Brown Development
Company, Inc. on behalf of the company.
,tee 0±-atc-k2.a0
Notary Public in and for
the State of California
ACKNOWLEDGMENT
STATE OF TEXAS
COUNTY OF HARRIS §
This instrument was acknowledged on the t, day of
1994, by Jim Hutchison, in his capacity as President of Busch Hutchison & Asso tes, Inc. on behalf
STATE OF TEXAS
COUNTY OF HARRIS
Qa.A \
Not Publiand for
--the State of Texas
ACKNOWLEDGMENT
This instrument was acknowledged on the o 04'` day of
1994, by John Stainback, in his capacity as Chief Executive Officer of P.F.A., I"nc. on behalf of the
company.
f+s
MINERVA G. MUNOZ
MY COMMISSION EXPIRES
September 13, 1997
4
Notary Public in and for
the State of Texas
ACKNOWLEDGMENT
STATE OF TEXAS
COUNTY OF HARRIS
This instrument was acknowledged on the '�` day of 10X�
1994, by Pete C. Alfaro, in his capacity as Mayor of the City of Bayt wn on behalf of the
municipality.
/ �2 min 6‘
b:k1h3/bayland
Not Public in and for
the --State of Texas
5
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of Orange
On —oo7vs-T �¢� jg94- before me, Debra C. Bezek, notary public,
DATE personally appeared T4',-lo-ra JileE NAME(S) OF SIGNR&
)
personally known to me - OR -E proved to me on the basis of satisfactory
DEBRA C.BEZEK
COMM. # 1013486
Notary Public — Coifomia
ORANGE COUNTY
My Comm. Expires FE816,1998
J.
evidence to be the personas) whose name()
care subscribed to the within instrument and
acknowledged to me that life he/they
executed the same in is /their authorized
capacity(), and that by is er/their
signaturesM on the instrument the person(:),
or the entity upon behalf of which the
person(k) acted, executed the instrument.
WITNESS my hand and official seal.
Ofitty,o,
OPTIONAL
signature of rotary
Though the data below is not required by law, it may prove valuable to persons relying on the document and could
prevent fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER
❑ INDIVIDUAL
❑ CORPORATE OFFICER
�' EXeC 1fiVQ Dfce,2
TITLES
❑ PARTNERS(S) D LIMITED
❑ GENERAL
❑ ATTORNEY -IN -FACT
❑ TRUSTEE(S)
❑ GUARDIAN/CONSERVATOR
❑ OTHER
SIGNER IS REPRESENTING:
NAME OF PERSON(S) OR ENTITY(IES)
DESCRIPTION OF ATTACHED DOCUMENT
tn'lr? •-no E,Q(./Ovrrk of )O-ee.-re
TITLE OR TYPE OF DOCUMENT
NUMBER OF PAGES
8''"/ a /9 i
DATE OF DOCUMENT
Pefe c- Al F> o
Tohn �131 _I,ivd.�k £,�LE-Ei J P. WA 1(
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SIGNER(S) OTHER TI-fAN NAMED ABOVE